For purposes of this blog post, issues relating to social media for lawyers fall into two general categories:
(1) What can a lawyer say and not say in social media?
(2) What is misconduct in relation to a lawyer’s social media-related activities?
California Rule of Professional Conduct 1-400 deals with what are impermissible “communications.” A communication under this rule is defined as “any message . . . concerning the availability for professional employment. . .”
While for many years this applied to written material, Yellow Pages advertising and the like, it naturally now applies to your website, blog, online advertising and of course, social media.
An exhaustive list of what Rule 1-400 allows and prohibits is beyond the scope of this post and we’re going to focus on the main types of communications to be mindful of when posting content to Twitter, Facebook and the others.
Preliminary, is what you’re posting a “communication” under 1-400? If it’s about an event or the addition of a new associate, that would likely not fall subject to State Bar scrutiny because the post is not for the direct purpose of communicating your availability for professional employment.
However, if it is established that your social media post is a “communication” as defined under 1-400, the big issues to be particularly concerned with are as follows:
- Is it a prohibited solicitation?
- Is your post false or misleading?
- Is it clearly legal information, not legal advice?
- If it’s a testimonial or case result, does it carry with it the required disclaimers?
- Is it clearly marked as an “Advertisement.”
For solicitation, under Proposed Rules of Professional Conduct 7.3(b), if it’s directed at an individual but is not in real time, and it doesn’t involve “intrusion, coercion, duress,” etc. then it’s probably not prohibited. If you’re chatting with someone through a Facebook chat box, that may be considered real time and should be avoided if you plan to solicit them for business.
If you are directly contacting someone through their social media by means other than chat to solicit their business, it has to bear the works “Advertising Material.”
To illustrate how a seemingly normal post can be interpreted under 1-400 and the Proposed Rules, in State Bar of California Formal Opinion 2012-186, they dissected an attorney’s Facebook post that read as follows:
“Another great victory in court today! My client is delighted. Who wants to be next?”
While it looks innocent enough, the State Bar didn’t like it. Here were their determinations:
- “Another great victory in court today” they decided wasn’t a “communication” within 1-400 so it wasn’t subject to the Rules of Professional Conduct.
- “My client is delighted” they found to be a testimonial without the prescribed disclaimer: “This testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.” (Rule 1-400, comment (2)).
- They had two issues with “Who wants to be next?” First, it could be viewed as a “guarantee, warranty or prediction” and therefore misleading, and it didn’t carry with it the required label “Advertisement.”
Needless to say, be careful because the State Bar may decide to review your social media content as they had with the lawyer in Formal Opinion 2012-186. And it appears that you have to keep it archived for 2 years (Rule 1-400(F)), so they will have a lot of your social media content to examine.
When it comes to social media, what constitutes misconduct is hard to define exactly, and it may be best to employ the smell test. If it doesn’t smell right, don’t do it.
In lieu of a definition of attorney misconduct in social media, here are a few examples of what has been construed as misconduct.
- A Louisiana attorney set up an online petition urging her followers to contact and influence two judges in a custody case.
- A Virginia attorney advised his wrongful death client to remove posts from the client’s social media that undercut their argument that he was grieving over the loss of his spouse.
- New Jersey insurance defense lawyers directed their paralegal to “friend” a litigant on Facebook to get information about her injuries.
- An Iowa judge postponed a trial after the plaintiff’s attorney posted an inflammatory message about the defendant which was viewed as tainting the jury pool.
Advice to clients on confidentiality:
One final note relates to your clients’ social media, especially if you’re a plaintiff’s attorney. If your client enters into a confidential settlement with a defendant, the client would be well advised to remember that when it comes to their own social media. In one Florida employment case, a former employee had to return settlement money after his daughter breached the confidentiality clause of their settlement agreement.
In sum, we need to be careful about what we post. The State Bar may decide to closely scrutinize the content that you post, and a client may misperceive something they read in your social media as legal advice, not legal information.
My recommendation is that you steer clear of posting anything that may be viewed as a “communication.” Keep your social media focused on news, community events and other information that may be of interest to your followers. Especially make sure that nothing you post can be construed as legal advice.
Get your disclaimers in there as much as you can to make sure that nothing in your social media is misleading to your followers.
As for the social media of other parties, it may be a great tool during discovery, don’t abuse social media in litigation or it may arise to the level of misconduct..